Common Questions Answered About the New Form I-9

With the new year, it's time to review your employee files and make sure you have the current forms.

On July 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) released a new Form I-9 for employers to verify employment eligibility. As of Sept. 18, employers could no longer use the old form and had to convert to the new form with the July 17 revision date. However, for any previous I-9 Forms — as well as the revised form — employers must continue to use the storage and retention rules, according to USCIS.

Any time a governmental form changes, employers often have questions about what's changed, what they need to know about compliance and what the risks are with noncompliance. Below are some answers to common questions about the new Form I-9 and what employers should expect.

Q: What Are the Changes Between the Old and New I-9 Forms?

A: The changes are minor. As reported by The National Law Review, minor changes have been made to the instructions and the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been renamed the Immigrant and Employee Rights Section. Additional changes were made to the Acceptable Documents list, including adding the Consular Report of Birth Abroad to the C document list and renumbering those documents contained in the C document list. Also, in Section 1, the form now reads that it must be completed "no later than the employee's first day of employment," as opposed to the former "must be completed no later than the end of the employee's first day of employment." As reported by Foley & Lardner, this can be strictly interpreted to mean that the form should be completed as early in the employee's first day of work as possible.

Q: Why Are These Changes Important?

A: Employers must view the I-9 Form as "more than just a form," according to Steptoe & Johnson. "The recent releases of the Form I-9 coincide with an increase in a focus on employer enforcement activity and policies," reports Steptoe & Johnson. With these changes focusing on regulation, policy and technology, employers must understand that greater focus is being placed on compliance.

Q: What Are the Penalties Involved With Noncompliance?

A: Since 2016, penalties have increased for noncompliance with Form I-9. For example, as reported by Steptoe & Johnson, in August 2016, fines for one violation increased from a range of $110 to $1,100 to a range of $216 to $2,156, virtually doubling. The penalties are assessed per error, not per form. Thus, if one form contains multiple errors, then each mistake can result in a penalty. Additionally, the employer itself can be fined based on the number of errors on the forms. Depending on the I-9 preparation, an employer could be looking at multiple fines.

Q: Who Investigates or Audits Employers for These Errors?

A: The U.S. Immigration and Customs Enforcement (ICE) may inspect an employer's I-9 Forms, according to USCIS. Typically, an employer will receive three days' notice before ICE arrives for inspection. However, ICE officials may arrive without three days' notice if they bring subpoenas or warrants.

Q: What Are Some Best Practices in Compliance for Employers?

A: Confirm that you're using the new Form I-9. Make sure each form is completed at the beginning of the work day for each new employee, and that it's completed accurately. Affirm that the documents provided meet the Acceptable Document list. If any mistakes appear on the form, simply draw a line through the mistake and re-enter the correct information. Keep all documents for three years after employees' hire dates, or one year after terminations, whichever is longer.

Employers must be sure that compliance is top of mind when completing and retaining I-9 Forms. With the government's focus becoming more attuned to compliance, employers must be on the ball when it comes to onboarding employees. Even if an investigation occurs, having appropriately completed forms will make the investigation go smoothly and potentially keep you out of hot water. Preparation is the key for compliance.

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